By Edwin Osorio 2nd Vice President
Working in an agency that is unfortunately not free from discrimination can be demoralizing and make you feel like you don’t have options. One thing your union wants you to know is you do not have to allow yourself to be a victim. Because of federal statute and the collective bargaining agreement between SSA and AFGE, you have the option of filing a grievance or an Equal Opportunity Employment (EEO) complaint. The question is: which one should you file?
So what are the differences between filling a grievance and an EEO complaint? The first difference should be an obvious one: while both procedures are protected by stature and collective bargaining agreements, the EEO process is dispositive to discrimination and the grievance process is much broader and not limited to complaints of discrimination. Another difference is that an EEO complaint ultimately goes before an administrative judge and a grievance can potentially go as far as arbitration. They both have their pros and cons. It would be contingent on the unique issues of the complaint that should dictate which process is most appropriate. This is where the consul of a good union representative could be most critical.
What really separates the grievance process and the EEO process is that there is an additional burden that has to be met during the EEO process. This is because normally when a discrimination case is brought forth, the act of discrimination is not the injury to the complainant, it is simply the instrument for the injurious act. So in an EEO complaint you not only need to show harm, you need to show the harm was a result of a discriminatory act. In a grievance, you merely have to show there was a violation of the contract and even if you don’t meet the burden of discrimination, you may prevail. Once again it is not as simplistic as this and a union representative would be the best way to navigate the particulars of any specific complaint.
Under the direction of a good union representative, a strategic and tactical approach would be adopted in order to determine the best route for the employee to take. For example: a union representative may determine that the evidence for discrimination is not substantial and would actually bring harm to the complaint; unsubstantiated allegations could actually mitigate an otherwise strong case. However, recompense is limited to parity proven losses. So if a complainant believes they have a strong case for compensatory damages due to pain, suffering, and emotional duress, an EEO complaint is more than likely the proper venue for the complaint.
Sometimes expediency is a factor. An employee is more likely to go before an arbitrator quicker than an administrative judge. At the present time EEO complaints are taking 3-5 years to go before an administrative judge. A grievance can go before an arbitrator within a year if this is an imperative goal. With a complaint where you are completely depending on a preponderance of the evidence being favorable, it may be less burdensome to go before an arbitrator where a decision relies less on abstract interpretation and more on the current CBA. With an EEO complaint, you not only have to state your facts on the particular discriminatory act, you have to prove that the violation happened because you belong to a protected class such as: race, gender, religion, nationality, disability, ETC. What this means is that even if all the facts are on your side, if you cannot prove you were treated discriminatorily because of your affiliation with a protected class, you lose and the Agency wins. On the other hand, if your evidence is compelling that discrimination was a factor, you may be able to show harm beyond lost wages.
On average, federal employees win about 3% of all EEO complaints brought against the agency. When you compare that to the average 60% of cases that are won by the Union on behalf of its members, it sounds like a no-brainer doesn’t it? And the number of successful EEO complaints will probably drop in the future because of understaffing at the EEOC. The EEOC has a severe shortage of judges hearing EEO complaints. This shortage of judges will only be exacerbated with the most recent budget cuts to the administration’s 2021 budget cuts that are inevitable. The truth is that if anyone tells you to file an EEO complaint instead of a grievance, they better have done their homework and be able to convey why the EEO route would be most advantageous.
The good news is that if you have committed to the EEO process, as a federal employee you must undergo an informal stage that requires a counseling session from an agency employee. The counselor will make a perfunctory and half-hearted attempt to resolve the issue informally. At the end of this process you may choose to either file a formal complaint or file a grievance. The advantage to filing an EEO complaint first is you can get a counselor to transcribe the issues, engage in ADR and learn the agency’s position, or simply pursue a grievance after the date to initiate a grievance has elapsed. The important thing is that all these tools are available to you to protect your rights and keep the agency on the straight and narrow. A good union representative on your side is crucial in determing the most advantageous course of action for you.